A E Madu v Loughborough College

An Employment Tribunal considering costs must apply the same statutory test to discrimination claims as to other claims. It must first decide whether a threshold is met and then separately exercise its discretion. In discrimination cases, however, it must account for the difficulty of assessing prospects before evidence from the alleged discriminator has been heard and tested.

A litigant in person is not immune from costs, but their position may be relevant both to unreasonable conduct and to discretion. The Tribunal must avoid hindsight. It must not infer, from the fact of legal representation and unwaived privilege, that the claimant received advice that the claim had no reasonable prospect of success.

The claimant brought a race-discrimination claim after he was unsuccessful in an application for a part-time lecturing post. He initially acted in person and later instructed solicitors. The Employment Tribunal dismissed the claim after a full hearing and, on the respondent's application, ordered the claimant to pay £20,000 costs.

The Tribunal found that the claim had no reasonable prospect of success and that the claimant had acted unreasonably in pursuing it. It assumed that, once represented, he had been advised that the claim lacked merit. The claimant appealed against the costs order. The central issue was whether the Tribunal had properly applied the costs jurisdiction to a discrimination claim brought for a substantial period by a litigant in person.

1. Appeal allowed. The costs judgment was undermined by the Tribunal's assumption that the claimant's solicitors must have advised him that the claim had no reasonable prospect of success. That was an impermissible assumption about privileged advice, which the claimant had not waived, and was a significant component of the costs decision.

2. Under Rule 76 of the Employment Tribunal Rules 2013, a tribunal must first determine whether a threshold ground is established and then make a distinct discretionary decision whether to award costs. The legal test is the same for all claims, but its application may require particular care in discrimination cases.

3. The Tribunal failed to give proper weight to the difficulties facing an unrepresented discrimination claimant in assessing prospects before trial. Such claims often turn on the reason for treatment and on witness evidence tested in cross-examination. The Tribunal was required to assess what the claimant should reasonably have appreciated on the information then available, without hindsight from the evidence at trial.

4. There was material capable of giving the claimant limited support for his belief that race was a factor: the different treatment of interview-change requests, the asserted under-representation of ethnic-minority staff, and the handling of feedback and grievance matters. The Tribunal therefore erred in finding that he should have appreciated from the outset that the claim had no reasonable prospect of success.

5. Although no precise causal allocation of costs to unreasonable conduct was required, the Tribunal had to consider the nature, gravity and effect of that conduct. It did not do so in relation to the additional matters relied on. The claimant's general views about racism, and unpursued or merely intimated procedural steps, did not themselves justify a costs order.

6. The matter was remitted to a differently constituted Employment Tribunal for a fresh determination should the respondent pursue its costs application.

• Employment Appeal Tribunal: allowed the claimant's appeal against the costs order and remitted the costs application for fresh determination by a differently constituted Employment Tribunal.
• Employment Tribunal: following dismissal of the race-discrimination claim, awarded the respondent £20,000 costs against the claimant after a hearing on 27 February 2023. The judgment was sent to the parties on 11 March 2023.